Chapter 6: Determining Credibility
When conducting an internal investigation, it is important to consider the various relationships within the workplace and any potential factors that might color or shape the evidence provided by employees who are involved in the investigation. Are there reasons why an employee might make false statements? Does the history of the complainant suggest any particular pattern of behavior or motivation that might lead him or her to make unfounded allegations? Determining the credibility of evidence collected during the interview process is rarely easy, but it is an essential part of conducting an accurate, thorough investigation.
The job of an investigator becomes increasingly difficult when the people you interview provide conflicting accounts of the incidents under investigation. The credibility of an investigation may suffer when too few or too many people are interviewed. In cases where the complainant and the subject are the only people available to be interviewed, it often becomes one person’s word against the other. Conversely, in cases where there are a large number of witnesses, it is important to bear in mind that some or all of them may be biased for some reason.
The EEOC recommends weighing the credibility of each person interviewed in order to determine what actually took place during the incident.
Factors to Consider
The EEOC has put together a list of five “credibility determinations” to consider when reviewing the information provided to you by complainants, subjects and witnesses. Bear in mind, however, that these factors are by no means the only things you need to consider when weighing the credibility of evidence.
Following are the five EEOC recommendations, together with a description of what to look for when determining the credibility of any statement:
1. Inherent Plausibility
Is the testimony believable on its face? Does it make sense? Look for areas of consistency among the statements provided to you during each interview. Interviewers and investigators may wish to consult workplace materials that provide corroboration for statements made during the interviews, such as security videos. Consider also the whereabouts of the employees in the workplace and the chronological order of incident-related events.
Does the person appear to be telling the truth? We have put together a helpful resource titled the “Black Book of Lie Detection,” which is available for download. Consult this document to learn more about the various ways an investigator can gauge the accuracy of an interviewee’s statements.
3. Motive to Falsify
Does the individual have any particular reason to lie? Does the person feel threatened for any reason? Note that bias and personal preferences can strongly influence a person’s ability to recall events or tell the truth. Interviewers must take into consideration any pre-existing connections or relationships between witnesses and the complainant or the subject. Could these connections cause the witness to lie in order to protect his or her co-worker? Does the witness fear retaliation from others for any reason? If so, be sure to address these issues at the outset of the interview. Remind the witness of the company’s zero-tolerance policy regarding retaliation, and encourage the employee to come forward in the event that he or she experiences retaliation.
Is the party’s testimony supported by physical evidence, written documentation or witness accounts? Witnesses can take many forms. An employee might have observed the incident directly (an “eye-witness”). Alternatively, an employee might have seen the complainant (or the subject) soon after the alleged incident, or might have discussed the incident with one or the other around the time that the incident is said to have occurred. Information gathered from such individuals must be weighed and considered for accuracy. If witnesses are biased toward or against either individual involved in the incident, chances are their stories will reflect it. Watch for common themes or discrepancies in statements provided by the complainant, the subject and any witnesses in order to get a better picture of what actually took place.
5. Past Record
Does the subject of the investigation have a history of similar behavior? Past behaviour is often – though not always – predictive of future conduct. It’s important to be aware of the presence of repeat offenders, and to be able to review the results of any prior investigations that might be relevant to the current situation. Our internal investigation software solution, i-Sight, provides investigators with the ability to identify repeat offenders in the workplace, enabling employers to intervene proactively before the problem gets any worse.